Avoiding Arrest and Conviction Record Discrimination Claims

Many employers are surprised to learn Wisconsin law generally prohibits them from making hiring or other employment decisions based upon an individual’s arrest or conviction record. Although there are some limited exceptions, the application of those exceptions presents an area of legal risk, especially for employers who do not have a good understanding of what the law provides.

Arrest Record

Among other things, the Wisconsin Fair Employment Act (“WFEA”) provides it is an act of employment discrimination to terminate an individual from employment, or to discriminate in terms, conditions, or privileges of an individual’s employment because of the individual’s arrest record. Arrest record includes information indicating an individual has been:

• Questioned
• Apprehended
• Taken into custody or detention
• Held for investigation
• Arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

Under no circumstances may an employer consider an employee’s past arrest record for which the individual was not convicted. However, the WFEA provides it is not unlawful to refuse to employ a job applicant or to suspend from employment any employee who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job. If challenged, it is the employer’s burden to prove a substantial relationship.

Conviction Record

The WFEA also provides it is an act of employment discrimination to terminate an individual from employment, or to discriminate in terms, conditions, or privileges of an individual’s employment because of the individual’s conviction record. Conviction record includes information indicating that an individual has been:

• Convicted of any felony, misdemeanor or other offense
• Adjudicated delinquent
• Less than honorably discharged
• Placed on probation, fined, imprisoned, or placed on extended supervision or parole by any law enforcement or military authority.

Under the WFEA, it is not unlawful to take an adverse employment action against any individual who has been convicted of a felony, misdemeanor, or other offense, the circumstances of which substantially relate to the circumstances of the particular job. In creating this exception, the legislature sought to strike a balance between society’s interest in rehabilitating convicted persons and its interest in protecting the citizenry. Again, if challenged, it is the employer’s burden to prove a substantial relationship.

Substantial Relationship Analysis

In determining whether a substantial relationship exists, an employer must determine whether the job at issue provides a context within which a convicted person, being placed in an employment situation, offers temptations or opportunities for criminal activity similar to those present in the crime for which the individual has been convicted. It requires an assessment of whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear in a related context. The analysis generally requires consideration of the statutory elements of the crime and the details of both the conviction and employment position.

For employers located in the City of Madison, the Madison Equal Opportunities Ordinance requires that the substantial relationship analysis occur prior to making an employment decision. The Ordinance also prohibits an employer from considering a conviction that is more than three years from the date that the individual was convicted, placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense. The City Ordinance is significantly more restrictive than the WFEA.

Bottom Line

Employers must be aware of the rules of engagement relating to arrest and conviction record discrimination. Before taking any action based upon a pending charge or past conviction record, you should confer with legal counsel to assist with the substantial relationship analysis and to help put in place a defense to these claims.

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